Nuclear Weapons

The actions of countries in times of war are governed by International Law that constantly changes with advancements in weapons technology. There is not, however, an international law that specifically addresses the use of nuclear weapons. The Geneva Conventions, in 1949, outlined rules to protect populations during armed conflict. They require distinguishing between civilians and soldiers, and prohibit indiscriminate methods of attack that are not directed at a specific military target. The conventions also prohibit weapons that cause unnecessary injury and those that cause long-term and severe environmental damage. Specific types of weapons are not mentioned. Many believe that given the extremely destructive power of nuclear weapons, they should be specifically prohibited. These critics contend that the use of nuclear weapons clearly violates international humanitarian law regarding armed conflict.

To clarify this issue, the United Nations General Assembly asked the International Court of Justice (ICJ) for an Advisory Opinion regarding the legality of the threat or use of nuclear weapons. The opinion of the ICJ, handed down on July 8, 1996, is the most authoritative statement regarding the legality of nuclear weapons under international law. The ICJ concluded unanimously that the threat or use of such weapons should be consistent with existing international laws. The ICJ did not declare such weapons specifically illegal, but did state that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, leaving the issue of Self-Defense open.

Advocates of nuclear disarmament contend that based on this ruling of the ICJ, the threat or use of nuclear weapons violates U.S. as well as international law. Article VI of the United States Constitution states, "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." The reasoning is that since the threat or use of nuclear weapons violates international treaties that the United States has signed and ratified (e.g., the geneva convention), then the threat or use of these weapons should be illegal.

Since the ICJ opinion was delivered in 1996, direct actions by the public in support of nuclear disarmament have increased. Some courts have recognized the legality of such actions. In October 1999, a Scottish judge dismissed a case against three women who had caused damage at a base, which was part of a Trident nuclear submarine defense program. The judge cited the ICJ opinion and claimed that the women were justified in their actions because they were attempting to thwart the use of illegal weapons. In June 1999, a jury in the state of Washington found four activists not guilty of blocking traffic into a Trident nuclear submarine base. The court relied on international law, including the ICJ opinion.

The one international treaty that attempts to safeguard against the threat of nuclear weapons is the nuclear non-proliferation treaty (NPT). Under the treaty, the possession of nuclear weapons is prohibited by all states, except for the Nuclear Weapon States (NWS). The treaty defines an NWS as one that had manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967, which limits membership to the United States, the former Soviet Union (and its successor state, Russia), the United Kingdom, France, and China. Those few states possessing nuclear weapons are under obligation, as set forth in Article VI of the NPT, to "pursue negotiations in Good Faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament."

While the Nuclear Weapon States pledged to negotiate nuclear disarmament, the Non-Nuclear Weapon States (NNWS) pledged not to acquire nuclear weapons. As an incentive, the NNWS were promised assistance with research, production, and use of nuclear energy for peaceful purposes "without discrimination." Each NNWS also agreed to accept safeguards under the auspices of the international atomic energy agency. These safeguards do not apply to the NWS.

The NPT was signed in 1968, and entered into force in 1970. Its initial duration was 25 years. In 1995, it was extended indefinitely, with a review conference to be held every five years. Nearly every country in the world, 188 total, is a party to the NPT, with three notable exceptions: India, Israel, and Pakistan. Each of these countries possesses nuclear weapons. Under the ICJ opinion, however, the obligation to negotiate elimination of nuclear arsenals applies to those states as well as the NWS.

Nuclear waste storage has also become an issue. High level radioactive waste is generally material from the core of a nuclear reactor or nuclear weapon. This waste includes uranium, plutonium, and other highly radioactive elements made during fission. Most of these elements have extremely long half-lives (some longer than 100,000 years), which means it will be a long time before the waste will settle to safe levels of radioactivity.

In 1982, Congress enacted legislation in the hopes of solving the problem of nuclear waste disposal in the United States. The Nuclear Waste Policy Act (42 U.S.C.A. §§ 10101-10226) made the U.S. Energy Department responsible for finding a site and building and operating an underground disposal facility called a geologic repository. The recommendation to use a geologic repository dates back to 1957 when the National Academy of Sciences recommended that the best means of protecting the environment and public health and safety would be to dispose of the waste in rock deep underground.

Based on Energy Department findings, three sites were designated as possible repositories: Hanford, Washington; Deaf Smith County, Texas; and Yucca Mountain, Nevada. In 1987, Congress amended the Nuclear Waste Policy Act and directed the Energy Department to study only Yucca Mountain. Yucca Mountain is located in a remote desert approximately ninety miles northwest of Las Vegas, Nevada. On July 23, 2002, President george w. bush signed House Joint Resolution 87, allowing the Energy Department to take the next steps in establishing a repository. The state of Nevada and the city of Las Vegas filed a number of suits against the Energy Department and various other federal entities. These suits challenge such things as the lack of compliance with the Nuclear Waste Policy Act and faulty design of the proposed facility.

Further readings

Burroughs, John. 1997. The Legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice. Piscataway, N.J.: Transaction.

Evan, William M., and Ved P. Nanda, eds. 1995. Nuclear Proliferation and the Legality of Nuclear Weapons. Lanham, Md.: University Press of America.

Moxley, Charles J. 2000. Nuclear Weapons and International Law in the Post Cold War World. Lanham, Md.: Austin & Winfield.

It was also among the first few countries that collectively issued a working paper at the Non-Proliferation Treaty Review Conference that highlighted the catastrophic humanitarian consequences of using nuclear weapons.

The states possessing nuclear weapons have a special responsibility to undertake concrete and irreversible steps in nuclear disarmament," Guterres stressed, warning against the continued presence of some 15,000 nuclear weapons and dangerous rhetoric regarding their use.

WHEREAS, given the real and serious threat and the catastrophic global consequences of any use of nuclear weapons, whether deliberate or not, and its general incompatibility with international humanitarian law, the prohibition and elimination of nuclear weapons is a humanitarian imperative," he said in the resolution.

In some forums, the states opposing ban negotiations openly question the impact and effectiveness of a prohibition treaty; in others, they admit that the process could have profound implications for the perpetuation and legitimacy of practices related to nuclear weapons.

All content on this website, including dictionary, thesaurus, literature, geography, and other reference data is for informational purposes only. This information should not be considered complete, up to date, and is not intended to be used in place of a visit, consultation, or advice of a legal, medical, or any other professional.